This Writing Life

Monday, January 31, 2011

Managing Expectations

January 31, 2011

I, like many, many writers, I suspect, partly got into this gig with the notion of bestsellerdom, fame & fortune, movie deals, etc.

And for the most part I bet 99.9% of you discovered nothing of the sort. In fact, I'm fairly confident that not only did you not get rich or famous, but once you did "break in" to publishing, that the financial aspects of publishing your novel totally underwhelmed you. I'm pretty certain I'm not the only one.

I was at a Sanchin-Ryu karate weekend retreat this weekend and one of my Sanchin-Ryu friends is fantasy novelist Jim Hynes. We chatted briefly before the workout and I mentioned that he had been at Con Fusion the weekend previously, which is held annually in Troy, Michigan, which is only 20 or 25 miles from my house. I'd been considering going with my oldest son, but life got busy and I never quite pulled it off. Our conversation went something like this:

Jim: Well, it's mostly science fiction and fantasy people.

Me: Yeah, I know, but I was working on an SF novel for a while.

Jim: Oh, you're going to pay a visit to our low-paying ghetto?

Me: It can't be any worse than the one I write in.

Jim: Oh, don't underestimate how bad we can get.

Me: Don't overestimate the thriller market, either.

Ahem. Yeah, two real-world novelists facing up to the fact that we could probably both make more money delivering pizzas on the weekends than we do writing novels. (Well, I can't speak for Jim on that).

Partly why I'm writing this today is because I recently completed a nonfiction book proposal and sent a query out to one agent who promptly said it was a tough market, blah, blah. And another agent who asked to read it immediately, did so, and got back with me Saturday morning to say she liked it. And in the midst of her comments she said something along the lines of, "I can think of 3 markets right away that this would work for, but their advances tend to be low. What were you thinking of money-wise?"

I told her and haven't heard back, although I'll talk to her sometime today, probably. Because here's the thing: this book would be a tremendous amount of work and I just can't go as low for it as I have sometimes done for novels. It's impossible and I'm just not that deeply dug into pursuing it if I'm going to make pennies per hour.

Which also coincides with a couple other things that have happened this year to-date. Business slowed down for a while (but has picked up again), and during that period I not only wrote that proposal and really dug in on a novel proposal, but I put out a lot of feelers for new clients in nonfiction. Two of them came back asking for me to do a test-edit/test-writing thing. It's not unheard of, although rare for good markets who can tell whether you write or not based on published clips. And there's always a possibility they're just looking for someone to do free samples for them, even when they claim they're not.

The first one, I knew from their ad that they weren't offering much money so I blew it off.

The second one I didn't know, so I asked before I'd do the test: how much does this pay. She responded two days later with, "Between $17 and $80 per article."

To which I responded: "I'm sorry, but I have a business policy of not working for that low a rate."

Which is absolutely true. I make a living doing this. From time to time I might do some relatively low-paying work to break into a market or to fill in the time... it really depends on the project. Sometimes a project might pay $100, but I know I can do it in one or two hours. My hourly rate starts at $40 and that's fairly low-paying for a lot of freelancers.

$17 to $80 per article--that's ridiculous. And there have been a lot of job postings for freelance writers in this range--or worse. It's not a living wage and for that matter, it's so far below minimum wage you'd think it was practically illegal. It also tells me a couple things. First, that client doesn't value professional writers or professional writing, and second, they don't have any money. Neither one makes me want to work for them.

I realize that this can throw people for a loop, saying, "Gee, he's all about the money."

Well, yeah, I make a living doing this. If you were a plumber that typically charged $75 an hour, would you suddenly start telling people, "Hey, I'll install your dishwasher for $4 an hour."

No. He or she would tell you to do it yourself.

I'm not sure the title of this blog post is going to be helpful, because it's suggesting I have some way of dealing with the industry and the fact that you hoped you'd get a book advance that was, you know, $25,000 or $100,000 or upwards. And you got $1000 or nothing or $4000 or whatever.

One of the questions Leanne asked me--this nonfiction book project involves World War II--when I told her what the agent said about low advances was, "What kind of advance did Doug get for his book?"

Doug Stanton is a friend/acquaintance of mine and the author of two nonfiction books, the first one about World War II, In Harm's Way, and the second, Horse Soldiers, about special forces in Afghanistan. I don't know what Doug's advance for Horse Soldiers was, but I do know what it was for In Harm's Way--$500,000.

So I'm aware that there is money out there to be had. But if this agent comes back to me with her "low money" figure that's, you know, $5,000 or something like that (or worse), I'm likely to walk.

After all, I just got an assignment to write on a vaguely related topic for a magazine and that article pays $2000. Now, that's a very good-paying magazine article assignment, but increasingly I look at a good-paying magazine assignment of $1000 or $2000 and then look at a book publisher that wants to give me $1000 or something similar as an advance and I look at my life and my time and my energy and quite frankly think, "Fuck it, life's too short for this. Book publishing is crazy."

So we'll see.

And just as an addendum, Joe Konrath's got a lot of people thinking they'll e-publish and pretty soon they'll be rolling in money, that like Joe they'll be making $100,000 a year from their e-books. Well, maybe. Writers are. And a lot of writers aren't. So maybe you should manage your expectations there, too. It's okay to be optimistic, but realistic isn't a bad idea either.

p.s. My comment about pizza delivery made me want to do some math, so I looked it up--federally mandated minimum wage is $7.25 (may vary from state to state, apparently). So let's say you got a really minimal hourly part-time job, let's say at McDonald's, and you work one Saturday every other weekend. That's $7.25 X 8 hours X 26 weeks, which equals $1,508. Which, by the way, is $508 more than my last book advance (and at 208 hours, probably about right for the actual writing of the book, but not enough to cover promotion, etc).

Friday, January 28, 2011

Book Contracts 101, Part 14 (Miscellaneous)

January 28, 2011

I'm going to jam in the last bunch of clauses here, mostly without comments, because they're mostly little legal tweaks and are self-explanatory.

16. Notices: Any notice or other communication required under this Agreement shall be in writing and shall be considered given when mailed by certified or registered mail, return receipt requested, to the other party at the address set forth above (or at such other address as a party may specify by notice to the other from time to time).

17. Complete Agreement: This Agreement contains a complete statement of all the arrangements between the parties with respect to its subject matter, supersedes all existing agreements between them, and may only be modified or terminated by writing signed by both parties.

18. Governing Law: Irrespective of the place of execution or performance, the validity, interpretations, and legal effect of this Agreement, shall be governed by the laws of the State of (where the issuing person is, in this example New York, although in reality the contract I'm basing it on was Massachusetts) applicable to contracts entered into and performed entirely within the State of (wherever). Any action by either party hereunder in connection with or arising out of this Agreement may be brought only in the appropriate State court in the COunty of (wherever). Any ground for objection to such venue, to the personal jurisdiction of such court or right to remove such action, hereby is waived by all parties hereto.

19. Lost or Damaged Property: Except for loss or damage due to Publisher's own negligence, Publisher shall not be responsible for the loss or damage of any of Author's property, including the manuscript of the Work and supporting material, and Publisher's liability for any such loss or damage caused by Publisher's negligence shall in no event exceed any amount payable to Publisher under any insurance carried by Publisher covering such loss.

20. Complimentary Copies/Author Discount: Upon publication of the Work, Publisher shall deliver ten (10) complimentary copies directly to Author, who shall have the right to purchase additional copies at a discount of fifty percent (50%) off retail price. Two (2) complimentary copies will be sent directly to Author's agent.

Just a comment here. All of my book contracts, including my nonfiction book, have offered 10 copies. I assume that's standard, although I note in Stephen King's "Bag Of Bones" the main character mentions 50. Fifty is a lot, although maybe you'd sell them. I typically buy a case or so for hand-selling. Some contracts have other stipulations and amounts about author discounts and stipulate as well that when you buy them at discount you don't get royalties on those books. The nonfiction book I co-wrote had a fairly complicated deal for this because of the nature of the book and the nature of the authors' marketing campaign, because between the two of them they did about 300 public speaking engagements each year and would sell books at those gigs, so things were worked out differently.

21. Assignment of Rights and Licenses: All rights and licenses granted or assigned by us, pursuant to this Agreement, to any affiliate or successor of Bigshot Publishing shall be construed as though the Work is still in Publisher's hands, and all parts of this Agreement will be in full force and effect. In the event Publisher declares bankruptcy or goes out of business, all rights immediately revert to the Author.

A very important point, actually, that last line. In an earlier post I mentioned Write Way Publishing going bankrupt. I was lucky, actually, in that they went bankrupt before my book was published (yeah, hard to believe I said that). Because there was no clause like this in anybody's contract, all the authors who had books out with WWP had their rights tied up in bankruptcy proceedings. And I was told by a friend of mine who was published by them that there was a meeting with the bankruptcy attorney at one point and an author asked about getting their rights back and the attorney folded her hands in her lap and said, "Make me an offer." So yeah, that line can be a very important line.

22. Headings: The paragraph headings provided in this Agreement are for convenience only and shall not be deemed to modify, construe, limit or otherwise affect the provisions thereof.

23. Agency Clause: All statements and sums of money due and payable to the Author under this agreement shall be rendered and paid to the Author's agent, Bob Bigbucks (the "Agency"), whose address is: _______________, which is authorized to collect and receive such monies. The receipt by the agency shall be a good and valid discharge of Publisher's obligations under this agreement, and that the Agency is empowered to act in the Author's behalf in all matters arising out of this agreement.

Just to point out something here, which is that if for some reason your agent decides to rip you off, this clause absolves the publisher of any blame or liability, so let's hope your agent is trustworthy and professional.

And then you sign the damned thing.

I hope this series has been helpful. It's a fairly standard contract, although there are an apparently endless variation among different publishers and undoubtedly authors, but this is, for the most part, a somewhat boilerplate example of a book contract.

12. Non-Competing Publication: During the term of this Agreement, Author shall not publish, or cause or permit to be published, any book with the same characters and/or the same world as in the Work that would compete directly in the market place with sales of the Work.

An interesting question, though. Let's say I wanted to e-publish a novella or collection of short stories, etc., featuring my series character. How to deal with this? Well, I'd consider discussing it with the publisher. Or not, because they could say no way. But I imagine a lot of authors would consider the e-book as marketing for the other book.

13. Force Majeure. Neither party shall be responsible for any failure or delay in performance of its obligations under this Agreement due to circumstances beyond its reasonable control.

14. Waiver: The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. Any waiver must be in writing.

Which is to say that if, for instance, you miss a deadline and your publisher doesn't kill the contract, that your publisher automatically lets you miss deadlines or ignore any other part of the contract.

15. Binding Agreement: This Agreement shall be binding upon and inure to the benefit of the parties' respective heirs, personal representatives, successors, and assigns.

If I understand this contract correctly, it means that your spouse and children get to deal with the fallout of the contract if you get hit by a bus.

Wednesday, January 26, 2011

Book Contracts, Part 12 (Termination)

January 26, 2011

I think we're getting down more toward the less interesting clauses, but sometimes these can have little "gotchas" in them (which is probably why they're there).

10. Termination:

a. This Agreement shall terminate and all rights granted to Publisher hereunder shall revert to Author, except those covered by existing contracts and licenses with other third parties, in the event the Work is out of print in Publisher's edition, and Publisher fails to notify Author of Publisher's intention to reprint or publish a new edition of the Work within ninety (90) days of receipt of Author's written demand and if Publisher fails to reprint or publish a new edition within six (6) months after Author's demand. For purposes of this contract, "out of print" is defined as less than 50 print copies available for sale in the Publisher's warehouse.

I'm going to give this particular publishing company a lot of credit for actually saying what their definition of out of print is. The first time I was offered a book contract, for the now defunct Write Way Publishing, there was no definition of OOP and when I asked the publisher to put in a definition she snapped (snarled, is a more accurate description), "It's out of print when I say it's out of print." [And for those of you who wonder, sometimes, why I sometimes seem cynical about publishers, it's primarily because my personal experiences have been about 50/50 between those who are professional and those who are psychotic and/or incompetent].

Expect this clause to get significantly more problematic in the near-future, if it isn't already, as more and more of the market goes toward e-publishing. I'm not a believer that traditional publishers and paper books are on the way to extinction (exactly), but I think publishers, as larger chunks of their revenue come from e-books, are going to basically make Termination clauses in their contract that specify paper books versus e-books, and that they will hold on to e-book rights until hell freezes over, because they never go out of print.

b. Publisher covenants to produce a trade appropriate edition available for retail sales within 18 months following delivery by the Author of the complete manuscript. In the event of any delay from strikes, fires or other contingencies beyond the control of the Publisher or its suppliers, the publication date may be postponed until the spring or fall season immediately following the cessation of the cause of the delay. If Publisher fails to publish the book within the timeframe dictated above, the Author may terminate this agreement at his or her option. The author must demand, in writing, the return of the work. The Publisher must either publish the book within six months after receipt of said notice--in which case this agreement remains in full force and effect--or all rights revert to the Author, and this agreement shall be terminated.

Quite straightforward and reasonable, actually. Basically what this clause indicates is that once you sign the contract, the publisher agrees to publish the book within 18 months. If they have emergency contingencies like their offices getting burned down or flooded or UPS or their warehouse or printers go on strike, or presumably, a comet strikes the Earth's atmosphere and incinerates all trees, etc., the 18 months can be extended for a limited amount of time. If the publisher screwed up because they don't know how to stay on schedule and the 18 months goes by, the rights can revert to you and you can go find another publisher. The 18-month figure is probably typical, although I've had contracts that were about 2-1/2 years (Llewellyn) and the famously weird one with Write Way that was about 5 years. I wouldn't sign one like Write Way's now and probably shouldn't have then, but it was a learning experience.

11. Infringement: Publisher and Author shall jointly have the right to prosecute an infringement of the copyright in the Work. If the parties proceed jointly, the expenses and recovery, if any, shall be shared equally. If the parties do not proceed jointly, either party shall have the right to prosecute such action and the suing party shall bear all the expenses thereof and any recoveries shall belong to such party; and if the suing party shall not hold the record title of the copyright, the other party shall permit the action to be brought in his, her, or its name.

Seems straightforward. If someone plagiarizes or pirates your novel, either you or the publisher can sue them, jointly or separately. Whoever sues pays for the privilege and gets the money from the lawsuit. The only quirk is the last line, which means that, even though you as the author own the copyright, the publisher can still sue on your behalf (whether you want them to or not) and if they win, they get to keep the money. My guess is that this is fairly standard.

Tuesday, January 25, 2011

Book Contracts 101, Part 8 (Payment of Royalties)

January 25, 2011

I realized I skipped Part 8, and also skipped Clause 8, which is a fairly important one, so I'm going to do it now, with the idea that tomorrow's will be Part, er, 12, I think.

8. Payment of Royalties: Publisher agrees to pay Author an advance of BIG BUCKS HERE--payable upon the signing of this agreement. Said advance shall be deducted from royalties otherwise payable to Author pursuant to section 7 above and as set forth in this paragraph 8. Publisher shall render to Author an annual account of each calendar year of sales of the Work to December 31 on or before May 31 of the following year, at which time royalties shall be payable. However, Author's share of any sub-rights revenues will be paid within thirty (30) days of the time received. If sales fall below 100 copies in an accounting period, royalty payments may be suspended, and royalty and sales shall be accrued until that figure is reached, after which time Publisher will recommence payment of royalties at the customary time. If in any annual period the total payments due are less than $50, Publisher may defer the rendering of payments until such time as the sum of $50 or more shall be due to Author. Any monies due and owing from Author to Publisher (including any overpayment of royalties) may be deducted by Publisher from any sums otherwise payable to Author under this agreement. Publisher may retain a reserve for future returns in the amount of twenty percent (20%) from any amounts otherwise due Author. Said reserve shall be reduced or repaid to Author at such time and in such manner as Publisher shall determine in its sole discretion, based upon current sales and industry standards. Upon written request, Publisher further agrees to allow Author's audit by a licensed CPA, of Publisher's records as relate solely to the Work. Said audit shall be scheduled by mutual agreement no sooner than thirty (30) days after Publisher's receipt of Author's notice of its intent to conduct an audit and may occur only during normal working hours at Publisher's place of business.

Dear God, what a headache. Okay. Wow, where to begin. In case this is new to you, a book advance means an advance against royalties, so if you get a $10,000 advance, you need to sell enough books (let's say 5000 books at a $2/copy royalty) before you see another penny.

In this contract, the publisher indicates that the royalty periods are 6-months long and end on December 31st and May 31st, so you should get royalty checks and/or statements sometime (maybe) in January or June, although I've yet to hear of a publisher whose accounting system was even remotely efficient, so it's hard to say. Although twice a year is fairly common, it's just a likely to be March and September as January and June; occasionally a publisher will go for 4 or even 3 royalty periods per year, and if you're self-publishing through Amazon, etc., you get your royalties once a month. [Actually, a correction here. In carefully reading the language, I realize I'm not completely sure this contract has 6-month royalty periods. I believe it has a single royalty statement per year, for the year, which is compiled on December 31st. At which point the publisher has five months in which to get around to paying you. Which if that's the correct interpretation, the headache may be because I just put a gun to my head, but I think it is].

Addendum (1/25/11): I confess to being thrown by close reading of this, of which I don't want to discuss at length, but will undoubtedly be inspiration for some future post about the unreliability of income from fiction writing. So I looked up a different contract to see what the royalty dates were like:

21. A clear accounting of all moneys received by the Publisher from sales of this Work, or from licensing of rights for utilization of the Work by others, shall be provided by the Publisher to the Author on or before September 30th of each year covering the first six months of the calendar year, and on or before March 31st of each year covering the last six months of the preceding calendar year... There's more, but that's what I wanted to double-check.

There's a line in here which is surprisingly nice and useful for the author, and that's the one about sub-rights, which means that if you get a movie deal or audiobooks or whatever that your publisher is handling, they're not considered part of your standard royalties, you don't have to wait around for them, they'll pay them to you within 30 days of receiving them.

Then there's some interesting lines in here about how if your sales fall below 100 copies in the 6-month period, they just won't pay you until they feel like it. Unfortunately, this kind of statement is fairly standard, which doesn't make it any more wonderful for you. I'm often irritated by these types of subclauses because they suggest that $200 is such a small amount of money to the publisher that they won't even bother paying it to you, whereas I think most of us view $200 as a potential grocery bill, credit card bill, or down payment on our kid's dental braces.

I love the line about the Publisher possibly having an overpayment on a royalty statement. Yeah, sure.

Pay particular attention to: "Publisher may retain a reserve for future returns in the amount of twenty percent (20%) from any amounts otherwise due author." I've mentioned this before, but I'll reiterate: they're holding back, in this case, 20% of the royalties owed just in case bookstores fail to sell your book and start returning them for refund. This is a standard practice, although the "reserve against returns" percentage is all over the freakin' board. I've heard anywhere from 10% to 90%, so all in all, I don't have any particular problem with 20%. Just note that the next sentence in this clause indicates the publisher can pay you that reserve, if it's still available, when they feel like it. Also fairly standard, and I have to wonder, if an industry-wide audit occurred, just how many millions of dollars would be floating around in publishing house coffers that were "reserve against returns" that would be paid out at the publisher's "sole discretion."

The rest of it pretty much indicates that if you really want to get on the bad side of your publisher, you're free to hire an account to audit the publisher's records related to your work. This line always reminds me of agent Richard Curtis's book "How To Be Your Own Literary Agent: An Insider's Guide to Getting Your Book Published" (recommended reading, by the way, although I suspect it's out-of-date in many ways). In the book he talks about how he had as a client some low-level mafia enforcer who had written a memoir. When they got their royalty statement, Curtis was in a position of telling the guy about how the publisher was holding up paying all the monies owed. To which the enforcer asked who he should talk to at the publisher, who he then called and said something along the lines of, "You'll pay the rest of the money or I'll put you through a plate-glass window."

Sunday, January 23, 2011

Book Contracts 101, Part 11 (Right of First Refusal)

January 24, 2011

And on and on we go:

9. Right of First Refusal: Author agrees that it will offer Publisher the first right to publish Author's next work of fiction/nonfiction on the same terms and conditions as those contained herein, excepting, however, that Author may not be required to provide Publisher with an additional "Right of First Refusal". Publisher shall have a period of sixty (60) days from the date of Author's submission of a completed manuscript in publishable form to Publisher within which to review and make a determination as to whether or not Publisher will publish the new work.

This clause has other names, although the one that comes to mind is Non-Compete Clause, but there's another name I can't quite remember. I was curious, so I dug up one of my other contracts to see how it was handled. I have non-compete clauses in some of my work-for-hire and nonfiction contracts that are worded differently, as well.

So here it is from a different publisher:

22. The Author hereby agrees to submit to the Publisher his next book-length work in this series. This book may be submitted in the form of a proposal consisting of three chapters and a summary. The Publisher shall be entitled to a period of 60 days after receipt of the proposal within which to notify the Author of its decision. If within that time, the Publisher shall notify the Author of its desire to publish the manuscript or recording, it shall thereon negotiate with his [him/representative?] with respect to the terms of such publication. If within 60 days after receipt of the proposal the parties are unable to arrive at a mutually satisfactory agreement for such publication, the Author shall be free to submit his manuscript elsewhere.

Okay. Take a deep breath here. First, I like the 22. clause better than the 9. clause, but these are not my favorite book clauses. Let's talk about a few points.

The publisher, primarily, is trying to make sure that if they publish your book and it suddenly breaks out and makes a million bucks, they have the first shot at your next book. That actually seems reasonably fair, although you might feel differently if you got a $1000 advance, the book went crazy and sold 250,000 copies in hardcover and 1,000,000 in paperback and publishers were coming to you offering you $1,000,000 book advances for your next book but you had to tell them, "My old publisher has to see it first." Particularly if it contains this line: it will offer Publisher the first right to publish Author's next work of fiction/nonfiction on the same terms and conditions as those contained herein, excepting, however, that Author may not be required to provide Publisher with an additional "Right of First Refusal".

That line at least infers that the publisher is completely within their legal rights to again offer you $1000 for your next book and the same contract terms. Of course, they'd be stupid to and you'd be even stupider to accept it. You just have to stay cool and not freak out and realize that you've suddenly become a hot property. Just because you're offering them a first look doesn't mean you have to accept their deal. The next line says you can negotiate, and in that situation, you should.

In the second version of this clause, I like that they offered a contract based on a proposal. They are also very, very clear that if you can't come to terms with a new contract, you're free to go market it elsewhere.

A couple other points about the differences. The first version also suggests that should BOOGER KNIGHTS be a standalone OR a series, they have the right to take a look at any other novel OR nonfiction book that I might produce and start marketing. For instance, let's assume that BOOGER KNIGHTS was a kids' book about time-traveling 7th graders that go back in time to become knights of the round table. It seems like that would be a series, and so the publisher wants more of it. But let's say that due to weird publication schedules and your ability to crank out a book every 3 or 4 months that you've since written a darkly erotic thriller aimed at adults. By rights, the publisher has the right to see it first before you go marketing it somewhere else, according to the wording of this contract.

The second version of this clause expressly states that the publisher is really only interested in seeing your next book-length work featuring that series character. That isn't necessarily to say they won't look at your darkly erotic thriller aimed at adults, it's just that contractually, you're not obligated to show it to them.

Just a few points about this. Some writers have no issues with either version, they're loyal to their publisher, they write one genre, one book a year, and that's it.

Then there are those of us who write fast and in different genres, including nonfiction, and they don't want to be tied down to one publisher--or feel like they're in handcuffs each time they finish a manuscript that one publisher might tie up for 2 months when the writer knows damn well they're only interesting in publishing a book about middle-school time travelers.

By and large, I haven't been too tied down by these clauses either way. Some agents suggest that these clauses are meant to be broken, and let's just say you didn't hear that from me, but really, what are they going to do? They could tie you up in court if there was a lot of money involved, but why? They probably wouldn't win anyway, and there's been a fair amount of precedent, including between Tom Clancy and the Naval Institute Press, to suggest this tends to lean in the direction of the IP holder.

Anyway, I can only give you a little thought. The first contract clause: I had written a book with a different character and we marketed it anyway, because I fully intended to follow up with the same publisher with the same character (i.e., Derek Stillwater). They were fully cognizant of my intention. Eventually I contacted them and asked them if they wanted to read it, telling them a little bit about the book. Their reaction was essentially: no, we're not ready to publish more than one book a year with you, so get us the next Derek Stillwater, please. Although I'd be glad to read the new book (even though I have absolutely no intention of publishing it, under your name or anyone else's).

Well, such is life, at least in publishing. My only suggestion when it comes to the clauses is to think very seriously about what type of writer YOU are, how happy ultimately you are with the relationship you have with your publisher, and to tweak it as needed. And ultimately, not to worry too much about it. Most publishers, if you're a typical (i.e. "midlist") author, won't be too chuffed if you go somewhere else with a different character just as long as you continue to cough up the books you're writing for them on schedule with the same quality.

I noticed a few years back that Janet Evanovich was publishing 2 different series under her own name by 2 different publishers, and it was clear in the article I read that one of the editors was fairly annoyed about it (my guess would be it was the publisher who published the Stephanie Plum novels who was annoyed), saying it caused some scheduling issues having them at different publishers. (My guess would be her taking millions of dollars worth of business to a competitor might have had something to do with his attitude as well). Mostly I had two question: 1. Why did she do that? And 2. What did her Right of First Refusal clause read like?

Book Contracts 101, Part 10 (Royalties)

January 21, 2011

Today's piece is on royalties. I want to preface by saying that the numbers I put here are from an actual book contract of mine. Again, we need to go back to the first post and remind everyone of "standard values," which is to say, publishers have a general range of what is standard practices for royalties. Your contract may vary depending on what you might give up, how big an author you are, the type of book, of any number of other topics. The royalty structure here is, I can safely say, "reasonably typical." You might get better or worse royalties on your contract, but hey, that's what negotiation is about.

7. Royalties: Publisher shall pay to Author the following royalties, from the sale of each copy of the Work, less returns:

1. 8% of net receipts for 1-5000 copies, 10% of net receipts for 5001-10,000 copies, 12% of net receipts for >10,000 copies, except for those copies sold pursuant to clauses 7b and 7c (below). Royalty calculations do not include any "freight pass through" expenses that may be received as a result of the Publisher calculating them into the book's price.

So, the more you sell, the more you get. Just a couple comments. First up, "less returns." Yeah. Current book-selling paradigm is the publisher/distributor sends books to bookstore. Bookstore pays for those books, tries to sell them. If they do not sell them in a timely fashion (it could be as short as a few weeks), they can return the books to the publisher (I believe at publisher's expense) for a discount. You, the author, get nothing. In fact, what you get is a kick in the teeth, because in a typical royalty statement, at least the first one for each book, the publisher will hold back a percentage of your royalties to cover the cost of potential returns. That percentage they hold back is a mystery and varies all over the place, but I've heard numbers ranging from 10% to 90%. If this makes royalty statements and writing seem like a gamble, I'm often reminded of a statement I once read along the lines of, "If you want to make money gambling, own a casino." With publishing, I've often thought, "If you want to make money in publishing, own UPS." Of course, with a shift toward e-publishing, even UPS might lose money in publishing.

Second thought is "freight pass through" expenses. I wasn't really sure what that was (my bad), so I looked it up and although that's not really significantly clearer to me, it appears to mean the royalty calculations don't include any shipping expenses the Publisher may have taken into account when deciding on your book's price. What that ultimately means, I'm not sure, so if anyone knows, I'd be glad to hear it.

b. On copies of the work sold by us through channels outside of the ordinary wholesale and retail trade (other than remainders or overstock as described in clause 7c) at a discount of >51% of the Publisher's retail price, a royalty of 6% of the amount received shall be paid.

That would seem to be straightforward, although I have no idea what those channels would be, although I suppose it might take into account things like your publisher going to a trade show or conference and selling books themselves.

c. 10% of the amount of Publisher's selling price for remainders or overstock copies sold at a discount of 60% or more from the retail price after one years from the date of the first publication, except that if copies are sold at or below manufacturing cost, no royalty shall be paid. Prior to remaindering the Work, Publisher shall make reasonable efforts to notify Author and afford Author the opportunity to purchase all or part of such overstock at the remainder price.

Uh-huh. Clearly a lawyer wrote this little gem, because it barely makes sense and only marginally seems like it was written in the English language. If your publisher gives up on your book and is going to call it out-of-print and get the extra stock out of their warehouse to make room for someone else's books, they'll pay you 10% of whatever they get for them--EXCEPT if they're selling them at 60% off to a remainder house (with further stipulations that make my head spin). Basically, the publisher's made a deal to get rid of your stock and they've made a deal that they'll at least break even and not take a loss on them. They'll also be glad to sell the unsold books back to you at a discount, which typically is a couple bucks per book. If that happens and you plan to continue writing and selling, it's worth buying a case or two to sell at other book events, etc., if you can afford it and have space to store them. E-books might be changing that a bit, though.

d. No royalty shall be paid on copies sold or furnished gratis to Author, or for review, advertising or promotional purposes.

Seems straightforward. Somewhere in the contract you get some author copies for free. You don't get royalties for that. Books the publisher sends out for review or whatever, you don't get royalties. Often, if you buy books from them directly at a discount, you don't get royalties (which is why some authors set up a relationship with a bookstore, so that if they want a case or two of books, the bookstore buys them and sells them back to the author at cost and the author still gets a royalty).

Just a comment. You may have noticed that there's nothing about e-book royalties, which may or may not fall under subrights. You are right. I believe that was an oversight in this particular contract, or that the contract was signed prior to e-books taking off. E-book royalties are currently a negotiating hairball and nobody can really agree on what standard values are. Publishers of course want to keep it the same as everything else. Authors and agents and numerous writers organizations want it to be 50% or higher. What I hear is a lot of people are getting 25% royalties for e-book sales. That may or may not be good, but put it into the context of an author self-publishing an e-book with Amazon's DTP program and getting a 70% royalty, it becomes a problem. Publishers are tending to price e-books at $9.99. So loosely speaking, if you took my understanding of this contract, for each e-book sold at that price, I would get about $1.00. On the other hand, if I had a 25% royalty, I'd get $2.50 (roughly). If I self-published it and sold the book for $2.99, I'd get a $2.00 per sale. Hell, if I self-published it and put a $9.99 price tag on it, I'd get almost $7.00 per sale.

I'm not going to go into e-book sales here, but you as a writer need to look at those figures and at least understand what all the fuss is about these days as publishing and e-books shakes out.

Thursday, January 20, 2011

Book Contracts 101, Part 9 (Delivery of Work)

January 20, 2011

And so on and so forth:

5. Delivery of Work: Author shall deliver to Publisher, at Author's expense, an electronic, disk or two hard copies of the Work in final form, including all relevant photographs, maps, diagrams, charts, bibliography and all necessary licenses, releases and consents by REASONABLE DATE HERE. Delivery format to be mutually agreed upon between Publisher and Author.

a. If Author does not deliver the Work to the Publisher in form and content satisfactory to the Publisher in its judgment (which shall be final) by the date specified, or at another date mutually agreed upon on writing (the aforementioned provisions as to time, form and content to be deemed of the essence). Publisher may terminate this Agreement by notice to Author, who agrees to repay all amounts thus far advanced by Publisher. Such termination, if not caused by circumstances beyond control such as strikes or unavoidable accidents, shall be without prejudice to any other remedies Publisher may have for breach of contract.

b. If Publisher elects to submit the manuscript of the Work to Publisher's legal counsel for review (at the Publisher's expense), then the Work shall not be deemed complete and satisfactory unless and until all changes which may be required by legal counsel have been made by Author.

c. Author agrees to review and approve the copyedited manuscript. Publisher shall send Author galleys and/or page proofs of the work which Author agrees to read, review, correct and return to Publisher within thirty (30) days. In the event Author does not return the proofs within this time period, Publisher shall have the right to publish the Work as submitted in proof. Author agrees to pay the cost of additional alterations in type or in plates required by Author (other than those due to printer's errors) in excess of 5% of the cost of composition.

Okay, a few comments here. I think these are fairly straightforward and relatively noncontroversial, but there are a few things to think about. When the publisher sets a date you need to deliver the manuscript to them, if you think you're going to have problems hitting that date, say so. That delivery date sets a lot of things in motion for the publisher, including (but not limited to) your publication date. If you can't hit that date, everything starts getting moved around or people start doubling up or rushing things. And you don't want to cause the publisher extra work or force them to change your publication date, because that causes all sorts of problems with marketing and other important things involving the publisher's support of your work. So think about the date hard when you agree to it and negotiate what works for you.

Subclause a) is only controversial in that it allows your publisher to decide at a later date if they like your work and want to continue to publish it. They pretty much had that once they give you money anyway, but there it is in writing.

Subclause b) probably applies mostly if you're writing nonfiction or if your fiction has some references to real people or can be construed to be about real people. I doubt it's a good thing when a lawyer starts looking for things that might get the publisher sued--they'll tend to find things, because that's what they're being paid to do.

Subclause c) is not a big deal. The thirty days is probably negotiable, but you should be able to hit that for proofing and if you can't because of some family emergency, let your publisher know right away. At this point everybody's working to make the manuscript as good as possible, so if there's a problem, they'd rather have it proofed than not proofed. However, there's a reason for that last sentence about pushing costs off on the author if changes increase over 5% of cost of composition. I don't know if this is as big a problem as it used to be, given that most if not all printing is done using computers instead of hand-fixed printing presses. Nonetheless, there comes a point in the galleys--and I can attest to this strongly as the editor of a technical journal--where things start to get inconvenient and expensive to change, even if it's computerized (mainly because of changes in the production schedule by paying people overtime to do work that should have been done earlier). My suspicion is that this is mostly for those anal-retentive writers that decide at the last minute that they really want to add a chapter or a couple paragraphs or something along those lines. My advice as a writer, not as an analyst of these contract clauses, is to have your manuscript pretty much the way you want it to be when you turn it in the first time, so 9 months later when you're wrapping up galley proofs and going into production, you don't suddenly have major changes to make.

Wednesday, January 19, 2011

Book Contracts 101, Part 7 (copyright notice)

January 19, 2011

Continuing on.

4. Copyright Notice: Publisher shall apply for copyright in the name of the Author within three (3) months of the first publication of the Work. Publisher will include in its edition of the Work on the pages specified by United States copyright law the following notice(s): "Copyright 2011 by Mark Terry".

Seems straightforward, doesn't it? And very nice of them. Copyright is an interesting legal thing and again, I'm not an attorney. But generally speaking, once you write (not when you publish it), the work is copyrighted and you don't even need to put the little copyright symbol on it. Having someone pay for the registration with the US government is a formality and protects everyone involved. This is a standard clause in a book contract.

However, read this one:

14.Copyright and Intellectual Property Rights.

(a.)For purposes of this Agreement “Property” means any invention, technical information, data, computer software, literary works and all documentation thereof including without limitation source code, data base, improvement, design, copyrightable work, trademark or know-how which (1) is conceived, reduced to practice, authored, or developed by Authors solely or jointly with Publisher; (2) during the term, or in contemplation, of this Agreement; and (3) relates to the Book or the subject matter of the Book.All such Property shall become the personal property of the Publisher.

(b.) Property, whether or not copyrightable or protectable as a trademark or trade secret, all proprietary rights therein, and all material objects related to the Property and produced for the Book or Publisher’s benefit or at its request shall be exclusively owned by Publisher. All works related to the Book or specially ordered or commissioned by Publisher which may qualify as a work made for hire under the copyright law (17 U.S.C. 101) shall be considered a work made for hire, and Publisher shall be the exclusive owner of such works. Each Author hereby agrees to assign all such works made for hire and all copyright rights or other literary rights related to the Property or the Book therein to Publisher and hereby grants and assigns to the Publisher all their right, title and interest in and to the Book, and the Property and all literary property therein, including all copyrights throughout the world now or hereafter provided, as well as all renewals and extensions of copyright throughout the world, now or hereafter provided. Authors will assign, and do hereby assign, all right, title and interest in the Book, the Property and all proprietary rights therein to Publisher and will assist Publisher and sign all lawful documents for obtaining and perfecting the proprietary rights for the Book worldwide. All attorney fees and government fees relating to the proprietary rights and the preparation of any assignment or other documents to evidence the transfer of such rights to the Publisher shall be paid by Publisher, including, but not limited to the cost of registering the copyright and recording the assignment to the Publisher.

I highlighted in red the offending clauses. Yes, this was offered to me and my two co-authors for a nonfiction book. At the time, our agent suggested we walk if we couldn't change this. I agreed. The two co-authors agreed. I was basically the ghostwriter in this gig. The publisher refused to change this. The agent walked. The two co-authors caved, and because what I most wanted out of it--after a great deal of arguing on my part--was a published nonfiction book with my name on it and a ghostwriting gig in my portfolio, I went along with it. I'm accustomed to work-for-hire deals, although I wouldn't recommend it for a book project of this sort (certainly not one that has my name on the cover).

This is not an entirely outside-the-norm kind of stipulation in certain types of academic publications. That doesn't make it any less wrong. Basically the publisher is saying they own all the intellectual property. Go back to my first post and read what I had to say about IP and licensing of rights. See the conflict?

If you run into a contract clause like this for a novel or for numerous other types of creative endeavors, I encourage you at the very least to think long and hard about what this means. I encourage you to run for the hills just as fast as you can if it freaks you out sufficiently.

Why? I'll give you two examples. One is from this book project.

1. At one point one of my co-authors wanted an expert to come in and write a chapter of the book. I wasn't too happy about this, but I spoke with the expert on time management and we discussed things, especially in light of that she wouldn't be doing it for any money. Eventually she said she'd do it if she could use that chapter on her website and in her marketing materials. I told her, because of the copyright concerns, that could be a huge problem. She ran it by one of my co-authors who said, basically, "Oh, just put it up, it's not a problem." The expert was smart enough to realize the co-author was blowing smoke (to say the least). So, per my suggestion, we ran it by the publisher. The publisher asked a few dozen questions concerning size of the materials, what she would be using it for, and basically said, "No, you can't without reimbursing us, we own the copyright." The expert quite wisely said, "Thanks, but no thanks." It had the potential, after all, to tie up her intellectual property and create conflicts with materials she routinely used in her own business.

2. My brother is a college professor and music professor and composer. I talked to him about this clause. He had an interesting experience with it as a composer. Back some time ago, in college, I believe, he wrote some electronic music. A recording was made and the publisher paid him money and offered him a copyright deal very much like the contract above did. He cashed the check--he was in college, I think, and undoubtedly needed the money. It's possible he also didn't know any better. Anyway, what happened was a few years later the owner of the copyright resold the music to PBS to be used as the soundtrack for a fairly popular TV show that was on the air for several years. What did my brother get out of this? Zip. Zero. Nada. Not a cent.

And that, boys and girls, is why you pay attention to things like this.

Tuesday, January 18, 2011

Book Contracts 101, Part 6 (Author's Warranties)

January 18, 2011

Continuing on to the next clause.

3. Author's Warranties: Author warrants and guarantees to Publisher that the Work is original except for such material from copyrighted sources as is produced by written permission of the copyright holder; Author is the sole owner of all rights granted in, has full power to enter into this Agreement and such rights are not subject to any prior agreement, lien or other right that may interfere with Publisher's rights hereunder; the Work is not libelous or a violation or infringement of any copyright or civil right of any other party, and Author agrees to secure, prior to delivery of the manuscript, and deliver to Publisher all necessary permission for the use of photographs, quoted or excerpted material from other published works, and said permissions shall include the grant to Publisher of primary and subsidiary rights. Author agrees to hold harmless and indemnify Publisher against any claim, loss damage and expense (including reasonable attorney's fees) arising out of any breach of Author's warranties. In no event shall the Publisher be obligated to publish a work which, in its opinion, may subject it to any claims from any third party. The warranties, representations and indemnities shall survive the termination of this Agreement.

Okay, I think this is fairly self-explanatory, but let me get right to the heart of the matter: this is a CYA (cover your ass) clause for the publisher, so that if for some reason you plagiarized someone or are sued by somebody, they're pushing it all off on you. For the most part, novelists don't get sued a lot unless they're huge--JK Rowling, for instance, and Dan Brown. Nonfiction writers are sometimes sued, depending on the nature of the books. My understanding is that true crime writers get sued often. I'd read once that Joseph Wambaugh, who wrote both fiction and nonfiction, had been sued over every single true crime book he ever wrote. I don't know if that's true, but I would imagine that if I were Wambaugh's agent, for nonfiction books at least, this clause would be tinkered with a bit. Publishers, after all, are better insured than writers. Also, if I were writing true crime books, I'd have a long talk with my insurance agent about liability insurance.

Just a couple points. First, lawsuits for plagiarism, etc., often target the publisher AND the author. There's a reason for this. The publisher has the money. That's probably also why bestsellers get targeted as well (no probably about it, actually). Second, one of the things I see in this clause is that the publisher wants to make sure not only that you didn't plagiarize the work, but that it's available to be published. What comes to mind are writers who have been published by other publishers; the new publisher wants to make sure the old publisher doesn't have some legal hold on this manuscript.

And, of course, the publisher wants to be able to throw everything back in the writer's lap if anything goes wrong. I'm not a lawyer, but my guess would be that this clause doesn't, in reality, create a lot of real-world protection for the publisher. The lawyers will still file the lawsuits and if there's a lot of money involved and the publisher tries to throw it all back on the writer, the writer will quite likely file a countersuit against the publisher, and the whole thing will be messy and ugly and my guess is that the only people really happy with the situation would be the lawyers getting paid no matter what the outcomes are. It seems to me that lawyers often file lawsuits in hopes that the person being sued will just cough up some money to make the whole thing go away, rather than risk a jury awarding a few million dollars to a sympathetic lawyer, er, sympathetic complainant. Anyway, that's what this clause is all about.

Monday, January 17, 2011

E-Book Cover Art--For Free! (THIS OFFER EXPIRED!)

January 17, 2011

My niece's husband, Matt Elliott, (I guess that would make him a nephew) is going to school in graphic design and we were discussing e-book cover art this weekend when we got together. He did a mockup of a e-book cover design and he's willing to do some for people for free to build up a portfolio. You can contact him via email at:

mattelliott1@gmail.com

Cheers,

Mark Terry

Addendum Added 1-9-12

Hi. Matt just contacted me to say he was getting emails from people who still wanted him to do cover art for free. Okay, folks, this offer is a YEAR OLD! Really? You didn't notice that?

Matt is still doing cover art, but he's charging for it now, as he should. So if you do contact him re. cover art - and you should - be aware he is running a business. He has a portfolio now and everything, so, you know... understand?

Book Contracts 101, Part 5 (Even More Subrights Clauses)

January 17, 2011

Today's post continues with clauses 1d, 1e, and 1f, which all deal with various subrights.

1d. Author agrees to the appointment of Publisher as Attorney-in-Fact, for purposes of execution of sub-rights contracts in the event Author fails to execute within 60 days any such agreements which require the Author's signature.

An interesting clause, isn't it? In case you didn't get it, it means that if the Publisher has a deal that requires your signature and for whatever reason you don't get around to it, they can sign for you. I also interpret this to mean that if you don't like the deal (and you already gave away the rights, so tough), tough luck, they'll sign for you. So be careful what you sign away.

1e. In the case of non-English language publication rights, sold by the Author or on behalf of the Author by his agent, Author agrees to share all amounts paid, net of agent's commission and expenses, 80% to Author -20% to Publisher.

Ahem. Again, we go back to standards and negotiations. This varies all the time and the 80/20 split is something my agent negotiated. Many agents (mine included) if they work regularly with foreign language agents and publishers, want to keep 100% of the foreign language rights. Publishers, of course, also want to keep 100% of the foreign language rights, although they'll make a split with the Author. In this case, my agent kept the rights, but anything we sell, 20% goes to the publisher. In this case of this contract, we haven't sold any yet. When I had contracts with Midnight Ink/Llewellyn, they were adamant on retaining the rights and providing (if I remember correctly) a 50/50 split. Llewellyn had a very aggressive foreign rights agent on staff and I think that worked out okay. Your mileage may vary. Keep in mind, too, for instance, The Devil's Pitchfork and The Serpent's Kiss both sold to French, German and Slovak publishers. Although none of the book advances were huge for those, each of those was about the same size as the advances I received from Midnight Ink. In essence, foreign language editions tripled the size of the advances I received on the book. It can add up.

1f. In the case of dramatic, including film, television, radio or other broadcasting rights, sold by the Author or on behalf of the Author by his agent, Author agrees to share all amounts paid, net of agent's commission and expenses, 90% to Author -10% to Publisher.

I do not believe this split is standard. Most agents try to hold on to 100% of the film rights. Publishers, naturally, try to get a 50/50 split or even better. Film rights are generally considered the big money deals, although that may be part mythology. Again, one has to wonder what the publisher is doing to deserve 50% of the film rights income. Let's say, for instance, you wrote a novel that has big film potential and it gets optioned by George Clooney's production company for $100,000. The publisher gets $50,000 of it. Then, let's say Clooney gets greenlighted for the film and it takes off and is made for $70,000,000 and makes worldwide, $800,000,000. Depending on how your film option contracts come out, you make $1,000,000 (just made up numbers). Which is awesome. And your publisher gets half of it. Why? Because you agreed to it. Publishers might argue that without their stamp of approval on a novel manuscript, no one would be interested in making a movie out of it. That may or may not be true. Legend has it that John Grisham's The Firm sold the film rights before the publisher came on board. So it's a hard call.

It's just something to think about. One way to think of rights is you start out with a whole pie. And each right you sell is a piece of the pie. You want to keep as much of the pie as you can, or at the very least, if you're selling (licensing) rights, you want to make sure you're getting something in return for what you're selling. Try not to give away big chunks of your pie without getting something in return. As you may have noticed, publishers have a tendency to want the whole pie so they can re-sell parts of it themselves and split the proceeds with you. You and your agent, or just you, may want or be able to sell pieces of that pie yourselves without having to share the profits with the publisher. You as a writer may argue (or believe, accurate or not) that you can't sell those parts of the pie yourself, you need the publisher to do it. That's something you might consider educating yourself on, especially if you don't have an agent.

Okay, because 2. is straightforward, I'll include it in today's post.

2. Term: The license herein granted shall be for the term of the United States copyright, and during any renewal or extension thereof. See clause 10 for termination of contract and reversion of rights.

Straightforward, as I said. Each country has different copyright laws, and this just lays out that discussion of copyright in the contract refers to U.S. copyright law, not France's, Russia's or whomever's.

Friday, January 14, 2011

Book Contracts 101, Part 4 (More Sub Rights Clauses)

Yesterday we started with the Sub Rights Clause, noting that Clause 1a lays out what some of those sub rights are. Now, we get into some breakdown of money, a subject near and dear to my heart.

1b. The Publisher shall notify the Author of the terms of any contracts or agreements entered into by the Publisher with any agent and for any grants or licenses arranged by any agent or Publisher permitted under this agreement where the Author's share of the proceeds or the royalty is or is likely to amount to $500 or more. Upon the Author's written request, the Publisher shall furnish the Author with a copy of such agreement.

Okay, two thoughts. First, I imagine that the $500 number if quite variable, and if there's actually $499 there I'd like to know about it and get paid for it ASAP rather than have it gathering interest in my publisher's bank account. Still, you've got to put a dollar figure in there and I suppose $500 is reasonable. Second, please note the last sentence of Clause 1b. I know I hope that the Publisher will provide me or my agent with documentation of EVERYTHING that involves financial agreements related to my work without my having to ask for it. Still, I suppose this keeps the paper shuffling to a minimum, although it strikes me as being a way of keeping the author in the dark. Publishers probably argue that the author doesn't need to be privy to every internal and external document related to their work. I'd actually be very interested in what anybody else has to say about this, because I don't know what the issues actually are.

1c. In the case of each of the subsidiary rights specified in clause 1a, any and all of the amount paid shall be shared 50/50, net of agents' commissions and other expenses incurred by the Publisher in selling the rights, between the Publisher and Author.

Yeah. Okay. Remember where I mentioned "standard value" back in Part 1? This 50/50 split is where we get into "standard value." Because it's totally negotiable (or is to the extent that the publisher will negotiate). 50/50 may or may not be standard, but it's probably not atypical. But it is negotiable. I'm reasonably certain that if you were a big author who almost certainly gets your books serialized and turned into audiobooks, that a 50/50 split is unlikely. For someone with little track record and even less clout, you may be stuck with the 50/50 split.

And when we discuss 50/50 splits on subsidiary rights (or any splits in general), I suggest keeping something in mind: what does the publisher do to earn 50% of that revenue? I'm not putting a value judgement on it here, but it's a question the author needs to consider. In the current publishing paradigm, literary agents receive 15% of whatever they sell on behalf of the author, so 15% is considered a reasonable agenting fee. But when a publisher basically acts as an agent by trying to sell, say, the serialized rights of your World War II book to Smithsonian or Reader's Digest, or to have your book turned into an audio version, they're asking for 50%. Does 50% seem high for an agenting fee?

Well, yes, it does to me, particularly if you then consider (if you have an agent), that your agent will then get 15% of the 50% you receive. Just a for instance here:

Let's say your book is huge and your publisher manages to sell the audiobook rights for $100,000. Basically what your publisher did was take the book or even the manuscript and show it to an audiobook company, who then agrees or does not agree to pay for the right to use it. So you've got this fabulous deal and your publisher gets $50,000 and you get $50,000. Then your agent takes 15% of the $50,000, so what gets delivered to you is $42,500. That's a nice piece of money, but remember you have to pay taxes on it, and to make it straightforward, we'll say 24% for federal taxes and 4% for your state taxes. That means you pay $11,900 in taxes. That leaves you with $30,900.

Now, again, I'm being a nice guy here and not placing value judgements on this, but YOU as a BUSINESS PERSON need to know what you're signing and what that can potentially do to your money. So let me break that down given our most recent scenario.

For YOUR INTELLECTUAL PROPERTY, for certain subrights, YOU agreed to let a third party (the publisher) have 50% of the revenue generated by part of the rights, while you yourself will eventually end up with less than a third of that value because of your business expenses (which only accounts for your BUSINESS EXPENSES related to TAXES and AGENT FEES). And the publisher is basically getting that by acting as an agent.

Like I said, at least in this venue, I'm not putting a value judgement on that (although it must be clear I have opinions on it), just that you need to know what it is you're doing here. There are many, many things in a book contract that on the surface seem to make sense, but when you start to break the monies down in a realistic fashion, tend to freak you out a little bit. That's true in many areas of life, right? Ever bought a house? Ever wondered why over 30 years a $150,000 house will cost you $380,000? Or why you need to pay the bank all those fees on top of paying them interest? In many ways, it just is what it is, going back to "standard value."

When I'm in a grousing mood and somebody makes a comment about publishing and how great it is to be a writer, I will sometimes grumble about how everybody has their hands in a writer's pocket. Well, this is why. As I said, it is what is it. But I'm sort of reminded today of the line from Indiana Jones and the Last Crusade where the guy tells the young Indiana Jones, "You lost today, kid, but that doesn't mean you have to like it."

Thursday, January 13, 2011

Book Contracts 101, Part 3 (Sub Rights Clause)

January 13, 2011

Yesterday, in Part 2, I introduced the first clause, which gave the publisher the right to distribute and publish the book in English around the world. The clause has numerous subclauses. As mentioned in Part 1, each contract is different, but these subclauses will give you an idea of some of the issues that crop up in a contract.

1a. Sub Rights Clause: Author grants to the Publisher the exclusive right to license, sell or otherwise dispose of the following rights in the Work: publication or sale of the Work by publication of a reprint edition of the Work by another Publisher; condensations; serializations in magazines or newspapers (whether in one or more installments and whether before or after book publication); book clubs; audio; merchandizing; publication of the Work and selections there from in anthologies, compilations and digests; picture book versions, microprint and microfilm versions.

Okay, that seems reasonably straightforward. I'm envisioning a picture book version of a novel called BOOGER KNIGHTS and can almost imagine it shelved there alongside the Captain Underpants books. I'm also envisioning one of my Derek Stillwater novels as a picture book, or even better yet, a pop-up book complete with pop-up corpses. It'd kind of work in reverse. You move the book and the bad guys all fall down dead. Anyway, I digress.

Given today's market and the number of top novelists who get graphic novel versions made of their books, you can see why this might come up. I don't think we see a lot of serializations any more, except perhaps online, but there are definitely book clubs, audio and merchandizing (think JK Rowling). The publisher, in this case, is saying, "We get the right to do that. We also get the right to sell that right to someone else, if they're interested. What isn't written here (it comes up in clause c, actually), is how that will break down financially. If you have a clause like this in the contract and you can't find another clause that tells how much you get paid (usually in a percentage), then you're in trouble, because you're potentially giving the publisher all the monies that might come in from all these condensations (think Reader's Digest); serializations; book clubs, etc. Or Harry Potter Lego kits, puzzles, dolls, video games, films, jelly beans, theme parks, etc.

I will address subclauses b, c, and d tomorrow, because they support and limit subclause a.

Wednesday, January 12, 2011

Book Contracts 101, Part 2 (World Rights)

January 12, 2011

Moving from the introductory materials, there is typically a line that goes like this:

NOW, THEREFORE, the parties agree as follows:

Which is then followed by pages of legalese that divvy up all the rights we talked about in yesterday's post and discusses how they can be used, how much you get reimbursed for them, and for how long. A first clause usually looks something like this:

1. Publication License: Author hereby grants to Publisher the sole and exclusive right to manufacture (including the right to photograph or otherwise reproduce), publish and sell the Work in such manner and form and under such imprint as the Publisher may deem advisable throughout the following territory: the WORLD for English language editions(s).

Now, that clause is often followed by a number of subclauses, which I will begin to address tomorrow. There are, however, a few things I want to point out about this clause. In this case, it's rather broad. It's not just allowing the publisher to publish the work in English, but it's not specifying any particular format--hardcover, mass market paperback, electronic, etc. Some writers and agents may feel this is rather too broad. Given how things are trending toward e-books, it may very well be. If anyone has a clause that more narrowly addresses print rights alone, I'd love to read it.

The next point is the word "WORLD." This is not always the case. Sometimes a book contract in the U.S. will refer to NORTH AMERICA, or NORTH AMERICA and the UNITED KINGDOM, etc. See the issue? The clause as stated above means this publisher can publish in the U.S., Canada, New Zealand, Australia, the United Kingdom and anyplace else in the world that might be interested in a novel called BOOGER KNIGHTS written in English.

One reason publishers might just go for North American rights is because they don't have distribution in Canada, Australia, the UK or anywhere else. In which case, they're just holding on to rights they're not going to use or that they might sell to someone else in another country (we'll get to that kind of thing eventually). My guess is you're seeing more WORLD English language rights these days simply because Amazon has an international reach and so do many publishers, who want to siphon off as much money as they possibly can, even when they don't necessarily have plans to do any marketing or distribution (aggressively or otherwise) worldwide. That's the push-me/pull-you of book contract negotiations: generally speaking, both parties want control of as many rights as possible, even if they don't necessarily plan to exploit them, just in case some opportunity arises to bring in revenue.

Some authors think, "well, what do I care? I'm not going to market my book in Australia. Let the publisher control those rights and I'll take my share." Fair enough. A lot of the problem comes down to how you, as the intellectual property owner, are reimbursed for those rights. Let's say the publisher doesn't have a deal to sell a book in Australia, but they own the rights WORLDWIDE, and then when your book takes off, an Australian publisher comes to you or your agent and wants to do a special edition and promote the hell out of it and bring you to Australia and tour you. Fine, good, sounds great, you say. Then you look at your contract and realize that you don't actually have any say in the matter. Your publisher does. And they can say yes or no. If they say yes, they get a split of the money, depending on how your contract reads. If they say no for whatever reason--maybe your publisher just dislikes Aussies or they don't like the terms of the deal (this is publishing, weird, illogical shit happens all the time)--you have no say in the matter because you gave up all rights.

Tuesday, January 11, 2011

Book Contracts 101, Part 1 (Introductory Materials)

I thought I'd try this: Run a long series on book contracts, taking them more or less clause by clause. At the very least, you'll be able to read a book contract and see what one looks like.

First, a couple disclaimers. I am not an attorney, therefore I am not an expert on contracts. Don't base all your negotiations on what I say here. I am not an agent or attorney, so my experience with contracts is limited and this is primarily intended to give you a sense of what might be out there. It also gives me something to write about on my blog. Hopefully it will be useful.

Second, it's rare that two book contracts are the same, let alone for different books or from different publishing houses. Your mileage will most definitely vary.

Third, as I noted in the first disclaimer, I'm not an expert. I welcome people's comments who are both more experienced and/or knowledgeable. That way everyone--including me--can learn something.

Fourth, given what seems to be a shift toward e-self-publishing, I hope that the "traditional book contract" does not become a thing of the past.

Here we go, INTRODUCTORY LANGUAGE.

Typically a book contract will start something like this:

BIGSHOT PUBLISHING

405 Sequoia Drive

Gotham, NY 00002

Telephone: 555-123-4567 * Fax: 555-234-5678

AGREEMENT dated: _______________________________

Between BIGSHOT PUBLISHING, an independent Publisher and corporation duly organized under the laws of New York, having a place of business at 405 Sequoia Drive, Gotham, NY 00002 (the "Publisher") and Mark Terry, c/0 HOTSHOT LITERARY AGENCY, 1002 Hell Frozeover Avenue, Gotham, NY 00003 (the "Author"). The Author is the sole owner of rights of a book entitled "Booger Knights". And Author and Publisher wish to arrange for the publication of the Work.

* * *

Basically this just lays out the basic information about the publisher, the writer, the writer's representative, and very generally indicates what the contract is for and when it was enacted.

There is primarily one thing I want to draw your attention to, because it's what book contracts are all about. At the end it indicates "The Author is the sole owner of rights..."

Yes, that means you created it and you own ALL OF THE RIGHTS. From this point on you will be negotiating on what rights the Publisher will have access to, what they may or may not do with those rights, and how and when and for how much they will compensate you for that privilege, and for how long and under what conditions. That is what a book contract is all about. It's not about "yeah, I want you to publish my book." That's simply one right you're licensing to the publisher. There are many others and that's what's up for grabs here.

Another point to keep in mind as we discuss contracts is that every industry has what might be called "standard values" (I'm sure there's a legal phrase for it, but I don't know what it is). "Standard values" as I'm describing them here, means that in publishing, for instance, a "standard value" for a hardcover royalty figure might be 10% or 12% or 15%, or something else. A lawyer with zero experience in publishing may not know what "standard value" is for a publishing contract. A lawyer with a great deal of experience with patent law or union contracts might think a book contract should provide a 75% royalty (or whatever) to the writer. But in reality, that would almost never happen because "standard value" for hardcover royalties are 10%, 12% of 15%. It's a range the industry as a whole (more or less) has decided is standard.

Perhaps a simpler way to describe this is that 20 or 30 years ago, "standard value" for a literary agent's commission was 10%. Then somewhere in the 1980s or so the industry as a whole decided that agents should get 15% instead of 10%, and they gave themselves a 50% raise and for the most part everyone went along with it. Essentially, "standard value" changed.

Monday, January 10, 2011

Naked Heat by Richard Castle

January 10, 2011

Although I don't watch a lot of TV, a friend of mine suggested I'd really like the TV show CASTLE. So a few months ago I watched an episode on Hulu.com and found that I did enjoy it. Because it's on Monday nights at 10:00 PM, which is past my bedtime (sigh), I watch the new episodes on Hulu and I went back to the first season and have been purchasing them on iTunes and watching them consecutively. I'm about halfway through the 2nd season and I'm still a fan.

For those of you unfamiliar with the show, Richard Castle is an enormously successful mystery novelist (played by Nathan Fillion) who ends his very successful crime series starring Derrek Storm. He gets involved with a murder case and is instantly attracted to the detective, Kate Beckett (played by Stana Katic). Using his friendship with the mayor, Castle wrangles a situation where he gets to shadow Beckett and eventually they have a love/hate relationship and he helps solve crimes.

The mysteries in the show are pretty solid, but the reason for the show's success and appeal is the relationship between Castle and Beckett. There's a ton of sexual tension and a lot of charm and humor. Castle is an interesting character in an unexpected way because if it weren't for Nathan Fillion's charm, he'd be a real asshole. (Supposedly part of the reason the name Castle was chosen was because if you say it fast and no one's paying attention, it sounds like "asshole." Really). He's cute and often acts like a 12-year-old, and is given to inappropriate outbursts of enthusiasm, among other things. On the other hand, he has a teenager daughter, Alexis, and it's safe to say that they have the most mature father-daughter relationship on TV. Castle, despite his flaws, is an excellent father. Anyway, Castle, inspired by Beckett, starts another series featuring NYC Detective Nikki Heat. He describes her to Beckett as "really smart, really good at her job ... and sorta slutty."

In a fairly clever, but occasionally mind-bending bit of synergy, Hyperion is bringing out books featuring Nikki Heat written by Richard Castle. Naked Heat is the second book. My oldest son bought it for me for Christmas. And I read it.

So. What did I think?

Okay, first, Nikki Heat has a relationship with a writer, Jameson Rook (Rook = Castle, get it?). Rook is a journalist of the Doug Stanton, Sebastian Junger stripe--i.e., he writes celebrity profiles, adventure journalism pieces, and he's very, very big--Pulitzer Prize winning. In the TV show, Castle and Beckett never have sex. In the books, Heat and Rook have sex. A lot. And it's kinky (largely inferred). Keep in mind, this creates a fairly amusing synergy with the TV show, because you can view the books as fantasy's of Castle's. (And no, I don't know who actually writes the books, it's a fairly well-kept secret. It seems likely that it's Tom Straw--NOT Michael Connelly, James Patterson or Stephen Cannell, all who have appeared on the show as poker buddies of Richard Castle, but I'm not going to go into that here).

Is it good? Yeah, pretty good. The writing is actually quite good, nicely punchy with some terrific turns of phrase.

Plot. This threw me for a while, because it seemed initially to be a regurgitation of one of the TV episodes: a gossip columnist is murdered, then, as they're taking the body to the morgue the ambulance gets carjacked and the body stolen. But what I realized as I continued to read the book was that the author did something I thought was fairly clever--he/she took the basic plot of one of the episodes, then mixed in elements from all sorts of other episodes. Which, when you think about it, would probably be what Richard Castle, were he a real person, would do if he were seeking inspiration from a dozen actual murder cases.

The focus of the book really isn't the same focus as the TV show--i.e., the TV show is about Castle and Beckett, primarily Castle, and their relationship; the book is primarily about Nikki Heat and much less about the relationship between her and Rook, although it heats up toward the end of the book. I couldn't decide if that was completely intentional--after all, Castle as a character is enough of an egomaniac that he might make the books more about himself, except, one thing Castle is portrayed as is a real professional writer who's interested in the story and what the reader wants (despite the fact he's rarely actually seen writing).

Anyway, did I like the book? Yes. Was it a great book? No, probably not. Do I think it would have become a bestseller on its own without the TV tie-in connection? No, I do not.

Is it worth reading? Sure, if you're into the TV show or you like reasonably solid police procedurals.

Saturday, January 08, 2011

Bibliography

January 8, 2011

Sometimes I need to figure out what I've published. That's not necessarily true of everything I've written, but I thought I would lay it out here, just FYI.

Derek Stillwater thrillers The Devil's Pitchfork (available as e-books on Kindle and the B&N Nook, as well as used in trade paperback)The Serpent's Kiss (available as e-books on Kindle and the B&N Nook, as well as used in trade paperback)The Fallen (available as a hardcover and as an e-book in several different formats)

Friday, January 07, 2011

On Spec and the Big Bad Cloud Of Doubt

January 7, 2011Although it's really only the first week of the year, at the moment I'm working on a lot of projects "on spec." For those few of you who aren't familiar with the term, it's for "on speculation" which means you write something and hope it finds a home. Almost all novelists have experienced this early on, and even published novelists occasionally write full novels on spec, and very often proposals on spec. It's work with the hope of payment.

Although I might be a little happier if I had a few more contracted gigs, I'm confident some work will be coming my way soon, and I'm looking for it, so I'll find it.

But at the moment I'm working on one novel without contract--the next Derek Stillwater, so it's likely to be picked up; an e-book version of Freelance Writing For A Living, which I will self-publish; another novel that I'm slowly working away on; an anthology of short stories that some of you are involved in and will be e-published in the next month or two; and more relevant to today's blog, a proposal for a nonfiction book.

I settled on a concept/subject and now I'm doing research for this. It's exciting. I like doing this. Throwing myself into research, looking for an organizational principle in all the data, a way to tell the story, a way to structure the story so I can describe it in the proposal. It's a lot of work and the subject matter is fairly ambitious. For the most part, I'm just focusing on it and keeping my enthusiasm and optimism up. It's just that occasionally, late at night, your brain will say, "What if this doesn't work? You're just wasting time!"

Oy!

I try to focus on the optimism part. This could be big. One way or the other, I'll learn a lot. If the book proposal doesn't get picked up, there might be some articles I can write out of the material I've researched.

Thursday, January 06, 2011

JK Rowling: An Early Interview

January 6, 2011A very early interview with JK Rowling, back when she could still sit in a coffee shop and write; back when she seemed significantly less confident in an interview situation; back when she was astonished that her books had sold 30,000 copies in the UK and been translated into 8 languages, which was stunning to her. Oh, if she only knew what was going to happen to her just a little ways down the road.

Wednesday, January 05, 2011

Guest Blogger: Simon Wood

January 5, 2010

I'd like to welcome today's guest blogger, Simon Wood, author of numerous novels, both thriller/mystery and horror under a pseudonym (Simon Janus). He's here to talk about his latest novel and film collaboration, LOWLIFES. Welcome, Simon!

WHEN THE CHIPS ARE DOWNBy Simon WoodLowlifes centers on a washed up cop investigating the murder of a homeless man. When my collaborator moviemaker, Robert Pratten, approached me with the idea of a crime story set in the homeless community, it immediately appealed to my sensibilities. Regardless of your opinions regarding the homeless, the idea of becoming homeless is a scary thought and in these dire economic times, it’s something that could happen to any of us. That’s the great appeal of Lowlifes to me. That a calamity such as homelessness could strike any one of us.It’s very easy to judge others and their decisions, but I believe we walk a fine line in our daily lives. I’ve spoken to book clubs where readers have remarked that they would never find themselves in the predicaments that some of my characters find themselves in. I say you just haven’t found yourself in awkward predicaments—yet. Circumstances bigger and meaner can strike us at any time and wreck our lives. Homelessness could be the result, but so could jail, divorce, loss and a host of other things. The upshot is that our lives can be upended at any moment.So, when Robert presented me with a brief outline for the book, there were certain things I wanted to have in the story. The protagonist is San Francisco PD detective, Larry Hayes. He's lost his wife and daughter to divorce. He's lost his self control to a painkiller addiction picked up from an on-the-job injury. And he'll lose his career if he doesn’t get a handle on his life. It could be argued that Larry has fallen off the tightrope, but for me, he hasn’t. He stands on the precipice. His situation can get a whole hell of a lot worse. He can end up living on the streets like the man whose murder he's investigating or he can take a grip on his life and turn it around. Maybe sifting through an already ruined life reflected back at him will be the thing to help Larry find his balance and keep from falling.I don’t necessarily condone the decisions that Larry Hayes has made when readers meet him on page one, but I sympathize. I don’t believe any of us can say we wouldn’t allow ourselves to end up in Larry’s position. Life’s rug can be yanked out from under us at any time. Luck, timing and due diligence ensures that it doesn’t happen too often, but sometimes, luck plays against us and it all goes wrong in a hurry.So let Larry Hayes’ story be a warning to us all that the ground under our feet isn't as stable as we take for granted. :-)Stay lucky,Simon WoodLowlifes is a little different from my usual books as it’s more than just a book. The story is told from different character points of view using various media. The book tells the story from the point of view of the protagonist, a San Francisco detective. The short film gives the viewpoint of a PI investigating the cop. The fictional blog catalogs the thoughts and feelings of the cop’s estranged wife. The trendy term for this new kind of storytelling is transmedia. People can learn more about Lowlifes at www.lowlifes.tv